In 2016, New York State enacted a bill, N.Y. State Senate Bill No. 3004-A, N.Y. State Assembly Bill No. A. 3870A (the “paid family leave law”) which, effective January 1, 2018, requires all private employers in New York State and many public employers in New York State to allow employees to take, and to return to their jobs after taking, as much as twelve (12) weeks of paid leave in a 12-month period (i) to participate in providing care made necessary by a “serious health condition” of a child, spouse, or other family member, (ii) to bond with the employee’s child during the first 12 months after the child’s birth, or the first 12 months after the placement of the child for adoption or foster care with the employee, or (iii) because of any “qualifying exigency” arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. armed forces. Under the paid family leave law, leave taken by an employee from work in the above circumstances is called “family care” leave.
On July 19, 2017, the New York State Workers’ Compensation Board (the “Workers’ Compensation Board”) issued final regulations (the “new regulations” or the “new rules”) implementing New York’s paid family leave law. Among other things, the new regulations broadly construe the occurrences that cause employees to be eligible for family care leave.
The new regulations state that, for an employee’s child, spouse, or other family member who is not hospitalized to have a “serious health condition” (such that the employee may take family care leave to participate in providing care to that family member), the family member “must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider” (emphasis added). That is, the new rules define a “serious health condition” of an employee’s family member who is not hospitalized so as to include, for example, “Alzheimer’s, a severe stroke, or the terminal stages of a disease.”
So, too, the new regulations make clear that an employee may take family care leave (for birth, adoption, or foster care) before the actual placement or adoption of a child “if an absence from work is required for the placement for adoption or foster care to proceed.” For example, the employee may take family care leave if he or she “[is] required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption.”
In addition to liberally construing the events which qualify employees for family care leave, the new regulations clarify many other issues arising under New York’s paid family leave law, including, without limitation, the following:
- The new regulations require employers to offer to employees, whose employment is irregular or of limited duration such that they will not be eligible for family care leave, the option to file a waiver of family care leave benefits. If such an employee files such a waiver, no contributions for paid family leave will be deducted from his or her paychecks.
- The new rules specify that, when an employee seeks leave for the first time for an event which qualifies him for family care leave, the employee “need not expressly assert rights under [New York’s paid family leave law] or even mention family leave.” Rather, it is the employer’s duty “[i]n all cases . . . [to] seek further information to determine whether paid family leave is being sought by the employee.”
- An insurance carrier may deny an employee’s request for family care leave (to provide care made necessary by a family member’s serious health condition) when the employee requesting the leave is the perpetrator of domestic violence or child abuse against the care recipient. In other words, an employee who beats his or her spouse, child, or other family member is not entitled to take family care leave to care for his or her victim.
- Once an insurance carrier receives a completed request for family care leave with the necessary certification, the carrier must pay the claim or deny the claim within 18 days. If the insurance carrier does not timely accept the claim and make payment, it must pay any family care leave benefits with interest of 9% per year.
- If an employer maintains written guidance for employees concerning employee benefits or leave rights, such as in an employee handbook, that handbook or other written guidance must include information concerning leave under New York’s paid family leave law and employees’ obligations under that law.
- If an employer does not have written policies, manuals or handbooks describing employee benefits or leave provisions, the employer must provide written guidance to each of its employees concerning all of the employees’ rights and obligations under New York’s paid family leave law, including information on how to file a claim for family care leave.
- Where an employer refuses to reinstate an employee to his job after the employee has taken family care leave, or where an employer in any other manner discriminates against an employee because the worker has claimed or attempted to claim family care leave benefits, the new regulations establish procedures by which the employee may prosecute, before the Workers’ Compensation Board, an administrative complaint against the employer.
- If an employer fails to obtain, on behalf of its employees, an insurance policy to pay benefits for family care leave, the Workers’ Compensation Board shall impose (i), for the period of such failure, a penalty of up to one-half of one percent of the employer’s weekly payroll, and (ii) a further penalty of up to $500.
- The Workers’ Compensation Board may audit an employer for any purpose related to the administration of New York’s paid family leave law.
Take-Aways for Employers
By January 1, 2018, employers in New York State must modify their policies regarding absence for family-related reasons to conform to New York’s paid family leave law. Companies must revise their employee handbooks to reflect these modified policies.
Further, beginning not later than January 1, 2018, employers in New York which do not have employee handbooks must provide written guidance to each of their employees concerning all of the employees’ rights and obligations under New York’s paid family leave law, including information on how to file a claim for family care leave.